This will be familiar to the American Lawyers, but I thought this was interesting enough that it's worth bringing up, because it shows how much American culture changed, and is a really stark insight into how crappy American culture once was. We've just started studying rape in Crim Law, and, wow.
One of the more interesting developments in American Criminal Law was that in the 1950s, the American Legal Institute tried to codify and update anachronisms in criminal common law, resulting in the Modern Penal Code, which is used, to one degree or another, by about 2/3 of the United States.
Ultimately, it was finally promulgated in 1962. And it offers some telling insights into the American mindset before the Sexual Revolution.
For instance, section 213.1, on rape, states that "A male who has sexual intercourse with a female who is not his wife is guilty of rape if..."
That's right. At the time, forcing a wife to have sex with you was not a crime.
Then there's Section 213.6, offering provisions generally applicable states that:
3) "It is a defense to prosecution of <seduction of girls under 21 if you are their guardian, or less than 16 and over 10> if she is "primiscuous in sexual relations with others."
4) "No prosecution may be instituted or maintained unless the alleged offense was brought to notice of public authority within 3 months of its occurrence."
That's right. I hope you recover from the fact you were raped quickly, or else this crime gets a statute of limitations.
5) No person shall be convicted of any felony under this Article upon uncorroborated testimony of the alleged victim. In any prosecution before a jury, it shall be instructed to evaluate the testimony of a victim with special care in view of the emotional involvement of the victim and of determining the truth with respect to the alleged sexual activities carried out in private."
In other words, unless there were witnesses, a woman could not get somebody arrested for rape, although if she was robbed or assaulted, her testimony would suffice.
The result? In 1969, there was 1083 prosecutions for rape in New York.
There were 18 convictions.
(The year may be off; it was either 69 or 62, and I'm too lazy to look up the fact at the moment).
I should also note that most states kept a variety of statutes on the book, requiring that in addition to not consenting, the woman actively resisted the rape. Conbsider People v. Warren, an Illinois case from 1983. A woman was biking along a reservoir, when a defendant came up and struck up a conversation. When she attempted to leave, he placed his hand on her and said, "This will only take a minute. My girlfriend doesn't meet my needs." The defendant was 6'3'', weighing 185 lbs; the complainant was 5'2''. Because the victim didn't scream, fight back, or flee, the Court held she wasn't a victim of rape, although she testified at trial, "it was in the middle of the woods and I thought it would be bad for me" to scream.
The court found that "failure to resist when it was within her power to do so conveys the impression of consent regardless of her mental state, amounts to consent and removes from the act performed an essential element of the crime."
Quote from: Faeelin on March 24, 2009, 07:50:24 AM
One of the more interesting developments in American Criminal Law was that in the 1950s, the American Legal Institute tried to codify and update anachronisms in criminal common law, resulting in the Modern Penal Code, which is used, to one degree or another, by about 2/3 of the United States.
Model, not Modern. But yeah, it's god-awful.
QuoteThis will only take a minute.
That line never works for me.
Quote"It is a defense to prosecution of <seduction of girls under 21 if you are their guardian, or less than 16 and over 10> if she is "primiscuous in sexual relations with others."
You have got to be fucking with me.
She's was asking for it, Your Honor.
Faeelin, you're in first year law, right?
Why the fuck are you studying this kind of touchy-feely comparitive law stuff in first year? Thats the only year they seem to teach black letter law in most schools, this kind of analysis should come in second or third year.
And yeah - a lot of the same factors used to exist in Canadian law. Our criminal law was codified in the 1890s I think, and yes rapes had to be corroborated, and a husband couldn't be convicted of raping his wife.
Quote from: Barrister on March 24, 2009, 10:24:43 AM
Faeelin, you're in first year law, right?
Why the fuck are you studying this kind of touchy-feely comparitive law stuff in first year? Thats the only year they seem to teach black letter law in most schools, this kind of analysis should come in second or third year.
You didn't take criminal law as a 1L?
Does Canada have a province by province penal code, or is nationwide?
Quote from: Faeelin on March 24, 2009, 10:25:45 AM
Quote from: Barrister on March 24, 2009, 10:24:43 AM
Faeelin, you're in first year law, right?
Why the fuck are you studying this kind of touchy-feely comparitive law stuff in first year? Thats the only year they seem to teach black letter law in most schools, this kind of analysis should come in second or third year.
You didn't take criminal law as a 1L?
Does Canada have a province by province penal code, or is nationwide?
Yes, first year. But it focused much more on principles and case readings, not comparitive stuff (even with my prof being a raging feminist). This historical analysis of rape seems more appropriate to a athird year "women and the law" course.
The Criminal Code is nationwide, but is prosecuted by the provinces (except in the territories).
In an era of no DNA tests these rules would seem reasonable.
In that 1983 case the girl didn't even say no. :rolleyes:
Quote from: Barrister on March 24, 2009, 10:30:28 AM
Yes, first year. But it focused much more on principles and case readings, not comparitive stuff (even with my prof being a raging feminist). This historical analysis of rape seems more appropriate to a athird year "women and the law" course.
For some reason, our crim law professor loves going over the origins of comon law, and how the MPC has changed American law. To an extent, this makes sense, since some of the country has stuck with the old Common Law Rules for things like Manslaughter. But to a large extent the class feels fairly silly and is absurd policy discussions, which will make up one third of our final. :rolleyes:
So it makes some sense, if you are having students who will practice nationwide in theoretically 50 different jurisdictions. In practice, most of us will end up staying in New York, but...
Quote from: Barrister on March 24, 2009, 10:30:28 AM
Why the fuck are you studying this kind of touchy-feely comparitive law stuff in first year? Thats the only year they seem to teach black letter law in most schools, this kind of analysis should come in second or third year.
In American law schools, you really can't help but be exposed to this aspect of comparative law in first year. Criminal Law is taught as a 1L, generally using the Model Penal Code (since the MPC is at least logically laid out and since states vary so widely in their criminal laws), which means that everyone does a doubletake when they look at the 60s-era rape discussion.
Quote from: Faeelin on March 24, 2009, 07:50:24 AM
5) No person shall be convicted of any felony under this Article upon uncorroborated testimony of the alleged victim. In any prosecution before a jury, it shall be instructed to evaluate the testimony of a victim with special care in view of the emotional involvement of the victim and of determining the truth with respect to the alleged sexual activities carried out in private."
In other words, unless there were witnesses, a woman could not get somebody arrested for rape, although if she was robbed or assaulted, her testimony would suffice.
How is this so terribly unreasonable?
Aren't they simply saying "Hey, sex is often an emotional activity, and jsut because some chick gets pissed off that her BF dumped her and decides to say he raped her, that cannot be enough evidence to convict him".
Certainly if she accused him of robbing her, that is NOT sufficient evidence - she would have to come up with more than jsut her word for a conviction. The law is simply spelling out that you aren't allowed to throw your ex in jail for a decade or so because you say so, and juries should understand that.
How is rape any different from any other crime, where there is a burden of *proof* - and how can someone uncorroborated word ever rise to that burden?
Do you guys study much English caselaw (in particular 19th century stuff)?
My favourite cases from 1st year crim law was the "is it murder to kill someone in a lifeboat and eat them if you're starving" case.
Quote from: Berkut on March 24, 2009, 10:47:30 AM
How is this so terribly unreasonable?
Aren't they simply saying "Hey, sex is often an emotional activity, and jsut because some chick gets pissed off that her BF dumped her and decides to say he raped her, that cannot be enough evidence to convict him".
Certainly if she accused him of robbing her, that is NOT sufficient evidence - she would have to come up with more than jsut her word for a conviction. The law is simply spelling out that you aren't allowed to throw your ex in jail for a decade or so because you say so, and juries should understand that.
How is rape any different from any other crime, where there is a burden of *proof* - and how can someone uncorroborated word ever rise to that burden?
It's unreasonable because no other crime had such a requirement. No other crime *required* corroboration.
Now yes when you have the uncorroborated word of a witness to any crime it is certainly a factor to say that there is no corroboration, and yes that makes getting a conviction pretty hard. But why as a policy should you say you can never get a conviction?
And there are special dynamics behind rape/sexual assault. More than any other crime it happens behind closed doors where no one is watching. Requiring corroboration would have more effect on rape than requiring it on other crimes.
QuoteAnd there are special dynamics behind rape/sexual assault. More than any other crime it happens behind closed doors where no one is watching. Requiring corroboration would have more effect on rape than requiring it on other crimes.
But there are other special dynamics involved as well - no other crime involves such an emotional act between often emotionally involved people and what is almost always behind closed doors.
So that cuts both ways - and should not the law stipulate that in fact the *accused* should be given the benefit of the doubt, rather than the accuser?
There is no need to specify that in other crimes uncorroborated accounts are inadequate for conviction - it is simply assumed. When it comes to acts that happen, almost by definition, behind closed doors, then it is not unreasonable that additional restrictions on the ability to convict based simply on someones word be in place.
Are you arguing that you ought to be able to convict someone of a felony simply on the word of another interested party, under any circumstances?
I can understand your point - but I cannot imagine a situation where I would find it just to convict someone of a felony based ONLY on the word of someone who claims they saw it happened, when the person testifying is, by definition, not an unbiased or objective observer.
And yes, I do realize this will result in a travesty of justice, in many situations. Just not sure how to resolve it.
Quote from: Barrister on March 24, 2009, 10:47:49 AM
Do you guys study much English caselaw (in particular 19th century stuff)?
Fletcher v. Rylands and Rylands v. Fletecher was the big one I remember studying. There were a couple others as well.
The American states imported the common law of England as it existed c. 1776. Subsequent English common law court decisions were not precedential or binding, but could be cited as persuasive authority. It isn't that common to see English citations anymore because the US state domestic common law has developed so much over the years, and because much of what used to be common law doctrine was superseded by statute. But it still happens every now and then.
Quote from: Barrister on March 24, 2009, 10:47:49 AM
Do you guys study much English caselaw (in particular 19th century stuff)?
My favourite cases from 1st year crim law was the "is it murder to kill someone in a lifeboat and eat them if you're starving" case.
Is that from the famous case where a steamer sunk off South Africa and a bunch of starving sailors drew lots, and the guy with the short lot had the honor of being killed, butchered, and eaten? :x
Quote from: The Minsky Moment on March 24, 2009, 11:00:08 AM
Fletcher v. Rylands and Rylands v. Fletecher was the big one I remember studying. There were a couple others as well.
The very first case I ever prepped for trial was a small claims case. I'm forgetting the details, but it involved a fire spreading to a neighbros property, and thus I came to court armed with Rylands v Fletcher. I'll always have a found place in my ehart for that case.
Quote from: Berkut on March 24, 2009, 10:59:54 AM
Are you arguing that you ought to be able to convict someone of a felony simply on the word of another interested party, under any circumstances?
I can understand your point - but I cannot imagine a situation where I would find it just to convict someone of a felony based ONLY on the word of someone who claims they saw it happened, when the person testifying is, by definition, not an unbiased or objective observer.
And yes, I do realize this will result in a travesty of justice, in many situations. Just not sure how to resolve it.
I am arguing it ought to be possible to convict.
First I would tend to disregard the notion of a "unbiased observer" as simply not helpful. Everyone has some kind of bias, and it seems rather unfair to label the victim of a crime as biased. Certainly they have nothing tangible to gain by going to court.
In the end it ought to be left up to the trier of fact to sort out (the judge or the jury). They will certainly consider the lack of corroboration, but if they find the victim sufficiently convincing why shouldn't they have the option of convicting?
Also, under the old rule I believe there was a lot of caselaw revolving around what was or was not corroboration. Were ripped panties corroboration? Was the victim screaming "help I'm being raped" corroboration? This kind of technical analysis doesn't really get you very far.
On a related note, anyone catch the 60 Minutes piece a cuppa two tree weeks back about a rape conviction based on mistaken identity and the severe fallibility of eyewitness testimony in general?
Quote from: Barrister on March 24, 2009, 11:11:43 AM
Quote from: Berkut on March 24, 2009, 10:59:54 AM
Are you arguing that you ought to be able to convict someone of a felony simply on the word of another interested party, under any circumstances?
I can understand your point - but I cannot imagine a situation where I would find it just to convict someone of a felony based ONLY on the word of someone who claims they saw it happened, when the person testifying is, by definition, not an unbiased or objective observer.
And yes, I do realize this will result in a travesty of justice, in many situations. Just not sure how to resolve it.
I am arguing it ought to be possible to convict.
First I would tend to disregard the notion of a "unbiased observer" as simply not helpful. Everyone has some kind of bias, and it seems rather unfair to label the victim of a crime as biased. Certainly they have nothing tangible to gain by going to court.
Well, in the case of a potential rape, the issue of "fairness" becomes somewhat hard to sort out. Is it fair to call the victim biased? Of course it is - they have a lot to gain, if in fact they are bringing a false accusation - namely they get to toss someone they are mad at in jail. Back to the issue of the emotionality involved in rape cases.
And when it comes to "fairness", the law should in fact be more concerned with protecting the accused rather than the accuser. This is a rather basic tenet of western law, correct? The need for not just an abundance of evidence, but "beyond a reasonable doubt"?
Quote
In the end it ought to be left up to the trier of fact to sort out (the judge or the jury). They will certainly consider the lack of corroboration, but if they find the victim sufficiently convincing why shouldn't they have the option of convicting?
because at the end of the day someones word is simply not adequate to throw someone in jail over, and justice should not be defined by whoever is more appealing at trial, or who can lie more effectively.
And I still do not agree that any evidence based *strictly* on the word of an interested party wihtout any kind of corroboration could ever rise to the level of "beyond a reasonable doubt".
Quote
Also, under the old rule I believe there was a lot of caselaw revolving around what was or was not corroboration. Were ripped panties corroboration? Was the victim screaming "help I'm being raped" corroboration? This kind of technical analysis doesn't really get you very far.
Huh? I am not sure I understand - if someone heard someone yelling "I am being raped!" how could that NOT be corroboration?
The issue here that they are trying to get at is whether the sex was consensual or not, right?
Or whether or not the sex actually occurred - those are the two key facts, correct?
Again, I understand that my position is going to result in a lot of rapist getting away with it, and in fact the difficulty in getting convictions on rape charges has been historically well documented. I am glad we don't have that problem (as much) these days, since there is generally adequate physical evidence, and no presumption of innocence based on stupid shit like them being married or what she was wearing.
I guess I am playing devils advocate, and trying to put forth the argument that those stipulations do in fact make some sense, and are not necessarily simply misogynistic attempts to let men rape women.
Quote from: Admiral Yi on March 24, 2009, 11:22:35 AM
On a related note, anyone catch the 60 Minutes piece a cuppa two tree weeks back about a rape conviction based on mistaken identity and the severe fallibility of eyewitness testimony in general?
yep, I do recall that. They let some guy out of prison after a decade or something on DNA evidence, and they interviewed the victim who absolutely, positively identified the rapist and her testimony put him in jail.
Hell, I almost felt as badly for her - she seemed very upset at the entire thing. She said she was absolutely certain it was him, and was very sad to find out that she was wrong.
Quote from: Berkut on March 24, 2009, 11:23:56 AM
Huh? I am not sure I understand - if someone heard someone yelling "I am being raped!" how could that NOT be corroboration?
Because it is evidence coming from the victim, and in particular is only the victim's own words. Corroboration would seem to mean evidence that is external from the victim.
Like I said there was a lot of caselaw on the topic of what is or is not corroboration, and that whole issue was probably not helpful as is got away from the real issue of "did the accused rape the victim".
More a bit later.
Quote from: Barrister on March 24, 2009, 10:47:49 AM
Do you guys study much English caselaw (in particular 19th century stuff)?
My favourite cases from 1st year crim law was the "is it murder to kill someone in a lifeboat and eat them if you're starving" case.
The 1987 attempt to extend that principle to getting stuck in an elevator however was not a success. :(
Quote from: Malthus on March 24, 2009, 11:39:52 AM
The 1987 attempt to extend that principle to getting stuck in an elevator however was not a success. :(
Can't win 'em all. :console:
Quote from: Berkut on March 24, 2009, 11:23:56 AM
And I still do not agree that any evidence based *strictly* on the word of an interested party wihtout any kind of corroboration could ever rise to the level of "beyond a reasonable doubt".
I was going to write more, but basically it revolves around this issue.
Decisions in court are made strictly on the word of an interested party all the time. The way the system fundamentally works is that we throw all the relevant, material evidence before the trier of fact, and let them sort it out.
Why? Because to do it any other way becomes a nightmare. Otherwise you have to start coming up with all kinds of rules about what is corroboration or what isn't, what is an interested party and what isn't. It all gets very technical and removes the focus from the real issue.
Now the rule on corroboration changed so long ago (early 80s) that I have no idea what constituted corroboration or not. But is it really fair for one case to go to trial because the victim can present a ripped pair of panties (but no DNA), while the other does not merely because the panties were thrown out? Does that serve the interests of justice?
But don't focus too much on these kind of arbitrary rules. The lack of corroboration is very much an issue to be argued at trial. Defense will definitely bang the table about that lack, and the jury will have to consider it. But a hard rule on corroboration means some very worthwhile cases never even get to go to a jury.
Quote from: Berkut on March 24, 2009, 10:47:30 AM
How is rape any different from any other crime, where there is a burden of *proof* - and how can someone uncorroborated word ever rise to that burden?
My understanding is that people are convicted all the time based on the testimony of one witness. Is this wrong? Creating a higher standard for rape seems a bit odd.
I mean, sure, as a society we value the innocent. But given the other standards adopted at the same time, it seems like there's mysogyny at play here as well.
"Don't forget, women get weepy after sex."
No one has suggested reducing the burden of proof on rape/sexual assault from the "proof BRD" standard.
Quote from: Faeelin on March 24, 2009, 07:50:24 AM
For instance, section 213.1, on rape, states that "A male who has sexual intercourse with a female who is not his wife is guilty of rape if..."
That's right. At the time, forcing a wife to have sex with you was not a crime.
Why would a wife would not want to have sex with her husband?
Other than sickness, I can't imagine a situation like this.
Why are they married if they are not atrated to each other?
Marriage without sex is like a war without weapons.
Quote from: Siege on March 24, 2009, 07:23:08 PM
Why would a wife would not want to have sex with her husband?
Other than sickness, I can't imagine a situation like this.
Why are they married if they are not atrated to each other?
Marriage without sex is like a war without weapons.
I could imagine that you might not want to / have time to have sex every time your spouse wants to have sex. :mellow:
By the way, the number of lawyers and law students Languish has amuses me. We should set up a firm.
Lampkin & Adama?
.... Nevermind.
Quote from: Barrister on March 24, 2009, 10:30:28 AM
Quote from: Faeelin on March 24, 2009, 10:25:45 AM
Quote from: Barrister on March 24, 2009, 10:24:43 AM
Faeelin, you're in first year law, right?
Why the fuck are you studying this kind of touchy-feely comparitive law stuff in first year? Thats the only year they seem to teach black letter law in most schools, this kind of analysis should come in second or third year.
You didn't take criminal law as a 1L?
Does Canada have a province by province penal code, or is nationwide?
Yes, first year. But it focused much more on principles and case readings, not comparitive stuff (even with my prof being a raging feminist). This historical analysis of rape seems more appropriate to a athird year "women and the law" course.
Huh, it was the same for me, except I took CrimLaw my first semester, not second like Faeelin is (I guess?) in. I even remember specifically dealing with People v. Warren.
Fwiw,
should an allegation of rape (uncorroborated by any evidence) be prosecuted? I don't think so.
Edit: I also remember the lifeboat case. Those guys got railroaded.
I'm also kind of surprised they admitted it. "Dude went crazy from thirst and hunger, jumped off the boat, and started swimming for it. Well, that's how I remember it (burp)." :p